상속세 및 증여세법상 ‘조세회피의 목적’의 증명책임

Abstract

In civil litigation, the theory of fact in issue, which states that concrete facts drawn from abstract concepts, such as negligence or causation, as opposed to the concepts themselves, should be considered as the fact in issue subject to assertion and proof, is growing in prominence. However, in tax litigation, there seems to have been only scarce scholarly discussions on what should be considered the fact in issue, with the majority of discussions revolving only around the issue of burden of proof. However, it is intuitively obvious that discussions on what constitutes the subject of assertion and proof should precede discussions on burden of its proof. Against this backdrop, this paper posits that evaluative factors, such as the purpose of tax avoidance, cannot in itself be the subject of assertion and proof, and that only concrete facts either supporting or contesting such evaluation can be the subject of assertion and proof. Logically, abstract concepts are not historical facts, but rather are subject to interpretation, and therefore technically their existence cannot be proven. In fact, if, in legal practice, the purpose of tax avoidance itself is understood as the subject of assertion and proof, and hence that the burden of its proof lies with the plaintiff, it becomes difficult to achieve the efficiency of legal proceedings and trials. Furthermore, this causes confusion for both parties as to which fact they should focus on when submitting evidence, and this is also problematic as it comes at the cost of legal predictability. In conclusion, only concrete facts having both concreteness and specificity should be considered the fact in issue, and it should be interpreted that each respective party bears the burden of proof as to concrete facts favorable to oneself. This conclusion applies equally to tax litigation which either disputes general facts or scrutinizes evaluative factors, such as the purpose of tax avoidance.